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Lessley v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

October 18, 2017

AMANDA LESSLEY APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-15-718] HONORABLE THOMAS SMITH, JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          BRANDON J. HARRISON, JUDGE.

         Amanda Lessley appeals the termination of her parental rights to her children. Lessley argues that the circuit court erred in (1) granting a Rule 60 motion for reconsideration filed by the Department of Human Services (DHS) after the termination order was entered, (2) refusing to allow Lessley to elicit evidence regarding the applicability of the Indian Child Welfare Act (the ICWA), and (3) finding that termination was in the children's best interest because there was insufficient evidence of adoptability. We affirm.

         On 16 November 2015, DHS petitioned for emergency custody of seven-year-old S.H., five-year-old H.A., and four-year-old R.A. The accompanying affidavit stated that the children's mother, Lessley, had been arrested for delivery of methamphetamine earlier that week and had left the children in the care of her roommate, who took the children to the Siloam Springs Police Department when she could no longer care for them. The affidavit noted the family's history with DHS dating back to 2012, including a true finding of environmental neglect in November 2012 and a protective-services case that had been open from December 2012 to June 2014.

         The court granted emergency custody of the children to DHS that same day and the next day found probable cause to continue custody with DHS. The probable-cause order noted that the ICWA applied and identified a Cherokee tribal affiliation. On 30 November 2015, DHS received a letter from the Cherokee Nation; the letter informed DHS that the information it had received regarding the mother and the children was incomplete and that it was "impossible to validate or invalidate this claim without more complete information." The Cherokee Nation requested Lessley's middle name, maiden name, and date of birth.

         The court adjudicated the children dependent-neglected due to neglect and parental unfitness on 12 January 2016. The adjudication order included a finding that the ICWA did not apply to the children in this case. The order also noted that Lessley had not been present for the hearing and had failed to attend the staffing.

         Another letter from the Cherokee Nation dated 7 January 2016 stated that none of the names provided, which consisted of the children's names, Lessley's name, and the two putative fathers' names, were current enrolled members of the tribe. The letter concluded that the children did not meet the definition of an "Indian child" in relation to the Cherokee Nation as stated in the ICWA, so the Cherokee Nation did not have legal standing to intervene. Lessley's date of birth had still not been provided, however, and the letter explained that

[b]ecause 'ENROLLED TRIBAL MEMBER' and 'ELIGIBLE FOR ENROLLMENT' are different, a conclusive finding of 'eligible for enrollment' requires the full names, to include maiden names, and dates of birth for the direct biological lineage linking the child to an enrolled member of the tribe. It is impossible for Cherokee Nation to confirm or deny a claim of 'eligible for enrollment' without this information.

         Review orders entered in February and April 2016 noted that Lessley was not in compliance with the case plan and court orders. The permanency-planning order, entered in July 2016, again noted that Lessley was not in compliance and changed the goal of the case to adoption. DHS petitioned to terminate parental rights in November 2016, citing the "failure to remedy, " "subsequent factors, " and "aggravated circumstances" grounds for termination.

         The court convened the termination hearing on 31 January 2017. Lessley testified that she was currently incarcerated in the Benton County jail for failure to appear and that she was on probation after pleading no contest to delivery of methamphetamine. She admitted that she had spent "quite a bit" of time in jail during the pendency of the case, maybe six or nine months in total. She explained that she did not currently have a home, a car, or a driver's license, but upon her release from jail, she could live with her "adoptive granny." She also stated that she had not worked since 2015, and she admitted that she had not completed counseling or parenting classes. She denied she had a substance-abuse problem, but she also acknowledged testing positive for methamphetamine more than once throughout the case, with the last positive test occurring less than thirty days previously.

         On cross-examination, Lessley testified that she "should be" a registered member of the Cherokee tribe because "that's what [her] father told [her] before he passed away." She said that she did not have a registration card but that her dad and stepmom were "dealing with that" and would send it to her. After Lessley's testimony, DHS clarified that it had given notice to the Cherokee Nation, but because Lessley had not been available to provide sufficient information, the Cherokee Nation had been unable to make ...


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